Category: LABOR LAW

Since its adoption in 2009, the Patient Protection and Affordable Care Act (ACA) has received a lot of attention. The ACA is one of the most complex pieces of legislation ever enacted by the federal government, and many of its required regulations are still being written.

Recently, the executive branch announced that it would delay implementation of the so-called “employer mandate”, the requirement that employers with more than 50 full-time employees either offer employer-subsidized health insurance or face penalties. Many employers thought they were “off the hook” for another year. That would be incorrect!

Section 1512 of ACA included a new section 18B of the Fair Labor Standards Act (FLSA). This is a new reporting requirement for every “covered employer” under the FLSA, which impacts most employers in the U.S. As this article is being written, there is just over one month left to comply.

Section 18B of the FLSA requires all employers to provide written notice to each of their employees, no later than October 1, 2013, of certain information related to health insurance benefits. The notice must be furnished to each employee hired after October 1, 2013. The notice is required whether or not the employer provides insurance to any of its employees. The stated purpose of the notice, according to the U.S. Department of Labor (DOL) is:

Informing the employee of the existence of the Marketplace (referred to in the statute as the Exchange) including a description of the services provided by the Marketplace, and the manner in which the employee may contact the Marketplace to request assistance;

If the employer plan’s share of the total allowed costs of benefits provided under the plan is less than 60 percent of such costs, that the employee may be eligible for a premium tax credit under section 36B of the Internal Revenue Code (the Code) if the employee purchases a qualified health plan through the Marketplace; and

If the employee purchases a qualified health plan through the Marketplace, the employee may lose the employer contribution (if any) to any health benefits plan offered by the employer and that all or a portion of such contribution may be excludable from income for Federal income tax purposes.

The notice also provides the mechanism for the IRS to determine whether or not an employer is subject to the penalties prescribed in the ACA.

The notice, which must be in writing, can be delivered by first class mail, in person, or electronically if certain requirements are met. The DOL has issued model language to satisfy this requirement, which is available on the DOL website. Employers are not required to use the model reporting language so long as they include all of the required information.

The DOL has also issued Technical Release No. 2013-02 which describes this reporting requirement in more detail.

Employers who offer insurance have probably received information from their insurance carriers or brokers to complete the notice. If you are an employer who does not offer health insurance, you still have time to comply. We are available to provide assistance to employers who need help satisfying this new requirement.

You can have it all. Anything your mind can conceive – money, health, love and happiness. Which of these do you desire most? This will be your biggest problem. Which of these dreams do you want to manifest first. Because you can have them all using the law of attraction in the proper way. That is the key – knowing how to use this universal law properly to achieve any or all of your desires.

The law of attraction will work in your life just as it has for me and countless others, but you can’t be greedy. Saying I want it all now is not a positive action, it is a negative self defeating action.

In order to realize the ultimate success using the law of attraction, take one goal at a time and concentrate fully on that one goal. By wanting too much, too soon, you are scattering your positive action and will accomplish little if anything.

Not being greedy also means that when you have achieved a goal, be grateful and don’t immediately ask for more. Take a break to enjoy what you have achieved.

Taking time before you move on to your next most important goal will do two things. First it will allow you to be grateful and enjoy the fruits of your labor and it will also allow you to clear your mind. By getting the goal that you have just achieved off your mind, you are now able to put your entire power of concentration upon your new goal. By taking your goals one at a time you will be much more successful and speed up the time that each is achieved.

In uncertain economic times managers must be able to schedule labor correctly in a consistent manner, keep employees happy, and reduce fines imposed by legislative authorities, such as the Department of Labor. Businesses should seek to use cost effective computer employee scheduling software programs to ensure that proper scheduling techniques are utilized. Effective scheduling software will be able to schedule meal and break periods, accurately calculate overtime costs, and archive previous schedules for managerial review.

Example: The general manager at an ice cream store needs to ensure that one manager is always on duty, as well as a number of representatives are available to scoop ice cream. Each employee is required to receive a number of breaks during their shift, and this particular business prefers to hire employees who are minors to fill “holes” in the schedule. During a normal work day, between three and four employees are working.

By not carefully scheduling the break and meal periods and minor rules, the manager may end up with a shortage of staff as multiple employees take breaks (or leave for the day) at the same time, and minor employees leave for home. During the labor shortage, customers will not be serviced appropriately. Alternatively, the manager may choose not to send employees home when they should or allow breaks to proceed – grounds for heavy fines, a lawsuit, and/or increased insurance premiums.

Labor & Industries (L&I) audits are common in some US states (California, Washington, Oregon, and New York are the most common) in restaurant, food-service, and other hospitality-related industries. These audits are performed by the state or by insurance companies to verify that the business has complied with all applicable regulations.

Audits focus on unpaid overtime, minors working too late or too early, break and meal periods that are not properly documented, and other violations. Rule infractions can be punished with stiff fines and/or insurance premium increases. Make sure that all employees are aware of the applicable rules for the city, county, and state / province. Follow federal / national rules (where applicable), corporate rules, and insurance regulations (if applicable).

Where possible, automated employee scheduling systems should be utilized to enforce these rules reducing the administrative burden placed on managers – allowing management to work on other pressing issues such as training, customer service, and management tasks which cannot be automated by cost-effective technology solutions.

In most lawsuits, even those involving employment-based claims, the existence of a corporation provides protection for owners, corporate officers, and employees from personal liability. One significant exception is when the suit is brought under the Fair Labor Standards Act. Owners, officers, and high-level managerial employees who exercise some control over employment matters often find, to their dismay, that they have been included as a defendant in an FLSA lawsuit along with the corporate employer.

The reason for this potential personal liability arises from the extremely broad definition of employer found in the FLSA: “‘Employer’ includes any person acting directly or indirectly in the interest of an employer in relation to an employee…”

While the majority of cases finding an individual to be an employer involve owners or corporate officers, not all of them do, and the author is unaware of any case holding that that an employer must be an owner. The terms are not synonymous. See, e.g., Patel v. Wargo, 803 F.2d 632, 638 (11th Cir.1986) (a company’s president, director and principal stockholder did not take a sufficiently active role to be an “employer” under the FLSA).

On the other hand, not every exempt executive employee is, a fortiori, an “employer” simply because he or she exercises some managerial authority. The term “employer” is not so expansive that Congress intended that all supervisors be personally liable for FLSA violations. “[C]ourts generally reject ‘the idea that a low-level supervisor within a company can be individually liable.'” (citations omitted) Hernandez v. City Wide Insulation of Madison, Inc., 2006 WL 1993552 *2 (E.D.Wis.). Simply put, not every exempt executive employee is automatically an “employer.”

The test of employer status generally used by courts is a more complicated one looking at the “economic realities” of the relationship and requiring a careful analysis of the facts in a particular case. See, e.g., E.E. Falk v. Brennan, 414 U.S. 190 (1973). Courts have sometimes applied a four-part test in determining whether someone is an “employer”: whether the alleged employer (1) has the power to hire and fire employees; (2) supervises and controls employee work schedules or conditions of employment; (3) determines employees’ compensation; and (4) maintains employee records. Chung v. The New Silver Palace Restaurant, 246 F.Supp.2d 220, 227 (S.D. N.Y. 2002). Nevertheless, the determination is based on all the circumstances and no single factor is dispositive. Id. See Brock v. Superior Care, Inc., 840 F.2d 1054, 1059 (2d Cir.1988); Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir.1999).

Control may be restricted, or exercised only occasionally, without removing the employment relationship from the protections of the FLSA, since such limitations on control “do[] not diminish the significance of its existence.” Donovan v. Janitorial Servs., Inc., 672 F.2d 528, 531 (5th Cir. 1982). However, courts generally require proof, in order to find personal liability for an FLSA violation, that the individual in question is “responsible in whole or part for the alleged violation.” See, e.g., Riordan v. Kempiners, 831 F.2d 690, 694 (7th Cir.1987).

Are illegal aliens really the only people who are willing to work at a car wash? Are car wash owners really forced to hire them just to stay in business? Or are the car wash owners really just exploiting the labor to the highest possible degree? If so, why? Are they just greedy in not wishing to pay benefits, have health insurance or pay over time?

We know that Hispanic illegal aliens will not complain against OSHA violations, on the job minor injuries or minor violations from their employers. Isn’t that the real reason that most car wash owners cheat the system, lie about hiring illegal aliens and then use the rational that no one else wants the job?

From experience in the car wash industry for over 24 years I can tell you that our company never hired illegal aliens or violated immigration laws in hiring. We never exploited our labor or cheated the system? Why is it that citizens now are looking the other way at their local car washes? Won’t you join me in turning in all the companies who are exploiting the needy and hiring illegal aliens and then failing to pay their way?

Isn’t it time that we all stood up and did the right thing and turned in the cheaters, liars and scum who exploit illegal aliens? Isn’t it time that we recognized that “illegal” aliens are illegal and those who hire them are also breaking the law. Consider this in 2006.

Having traveled to every city in this county over 10,000 population and having set up franchises in 23 states and having had to deal in each market with labor issues. Issues of all types; High Unemployment, Low unemployment, OSHA Issues, Insurance Issues, Health Insurance Issues, Substance Abuse Issues of the young adults ages 18-28 and some times up to 40 years of age; I have seen things and heard stories about the reality of the working force. I can therefore state my observations as real issues and not by academia white paper. These are real issues folks and issues we must address for the welfare and safety of our Nation, our future Health Care Costs, the sanctity of future generations and the work ethic necessary for this country to continue to new heights.

Help Want Ads in News Papers across the country yield few quality applicants. In many towns there are small businesses, which cannot get the labor they need. They need people and have work. But unfortunately through no part of their own, the labor supply is very under whelming, from work ethic to issues associated with lower and lower middle class drugs. In the $5.75 to $12.00 range it is nearly impossible to get good labor willing to work. And those middle and upper middle spoiled kids who do not feel it is their duty to put in and give a fair days work for a fair days pay are the norm in that range of demographic although there are some diligent parents out there who have raised their kids correctly and those kids do show up on time, work hard and make us all very proud. The poor Small Business owner in this country spends countless hours training people only to have them quit due to a perception of a buyers market when it comes to labor and they demand respect without fulfilling the promises of the hand shake associated with employment.

Starbucks has a pretty low turnover considering, but it is still 50% per year. Most QSRs are hovering well over 85%-90%. Many small business owners fear retribution for firing anyone and puts up with abuses by head strong young adult labor who obviously do not care, barely put forth efforts and expect to be paid whether or not they show up on time or even put in the basic productivity to complete the assignment for which that small business derives money. Why? Perhaps I might give you some insight. They do not care. Why? Their answer, why should I, the business owner is making all the money and the fat cat. Business owners are all bad. Says who? Well the mass media, Elliot Spitzer and now the whole society believes it?

Many of the young teen employees, which earn minimum wage up to $12.00 hr seem expect and want free everything, benefits and care little about the actual business models productivity or customer service? Little sense of responsibility or real work ethic. Part of the problem is that many of these people are routinely doing recreational drugs. I would say in that wage price category 28% to 33% do recreational drugs and/or are regular drug users and whether or not the others end up eventually doing drugs, the drug user workers available for hire do and they lower the bar of acceptability to all businesses. It is for this reason that many good workers who would produce the productivity do not because it is not expected or required. Those therefore who put forth minimal effort are rewarded teaching others to do the minimal to be considered on the good list. But in actuality you have lowered the standard of basic human honesty and integrity. You have broken the unspoken laws of achievement.

All children, teens and young adults should try the best in everything that they do. We must keep expectations high. Unfortunately, we do not teach this do we as well as we could? Not in schools, not in work or at home. There are some parents who believe that kids soccer should not keep score? Why not? That is taking socialism to a whole other level. Working hard in practice to achieve teaches us to work harder to gain. If everyone is owed a paycheck without effort, then no effort will happen and no task completed to the expectation of the customer. These same kids or young adults as consumers are ultra demanding, yet when they are at work, they do not put forth. This is your basic “ME” attitude and although some psychologists say that is an innate tendency of the species, but is this acceptable?

For a large society working together for the common good we must solve this teen drug dilemma. Surely more and more businesses will be forced to find non-English speaking labor and robotics to accomplish tasks. Yet if the consumers who are demanding services are also the workers at other businesses then no one will work, because the expectation of service is gone out the window and everyone will get lousy service, poor workmanship forcing business to go robotic or close.

Today we observed the results of a recent newspaper want ad for labor and found that of the 20 people replying only 4 showed up for interviews. Three of which had no chance of working for us. One was demanding more pay before showing us even one hour of work. The one we hired lasted until 10 Am saying the work was too hard. Well, I am so sorry, what did you expect? It’s work. The same person complained to us about his apartment costs, pregnant girlfriend and other issues. He was wondering if we could pay him for the rest of the week in advance, truly pathetic. Then we recently fired a guy, which he had three kids with girls in other states and three kids from a previous marriage. He was 21, surely this guy can figure out more than illegitimate gene-pool work. Because let me tell you he didn’t work worth a darn.

The drug issues are serious in nearly every market we operate now, much worse than 10 years ago. Now it is as if 20% of the kids do not have drivers licenses, 30% use drugs often and 10% are out of it, not even good for three work days in a row? I would rather train chimpanzees, some probably speak just about as good of English as those we might replace these kids with. Many times colleges and Universities will have labor available and most heavy drug users wash out of college so you have a better pool, but even so many are spoiled and are not of an ethical nature or even care about completing a project. I wonder how much cheating and palagerism is going on at those colleges. Most of the College kids are good, but also limited to hours of availability. Churches often work for finding good workers and those of a more solid character. For instance the LDS church has an employment person at each stake center. Other local churches in many areas are good, but often cannot fulfill the needed labor requirements. We pay much more than a Wal-Mart, Starbucks, Blockbuster or McDonalds, but with entry level workers Health Insurance is out of the questions since the workers will probably be there less than the 3 months probationary period. Although many employees will be with us for years. But labor is an issue, quality labor and we are doing our part trying to put Americans back to work, but we cannot lead a horse to water so we can only put those to work who are not looking for free fish or a free handout.

This is a real issue and these issues effect every business man, something needs to be done. But even more serious will be these kids when they get older and take those work habits into the future and their health problems. We may see early mid 30’s and 40’s heart attacks. This will significantly drive up costs as those who do drugs do not generally have high paying jobs and will not have the proper coverages to pay for it, so society has to pay. If we fail to fix the problem then we will pay for it in the future 10-fold. We are paying now, if you stop and get to know some of these young people.

We need to continually address this issue, constantly be on guard, monitor our young loved ones and their activities and teach them what this is doing to their bodies, their future and the entire country.